It’s a situation that no partner or practice manager wants to find themselves in, but if an employee’s conduct falls below the standard expected of them disciplinary action may be necessary.
This decision is always up to you as a practice, but it’s important to follow certain guidelines. Here, we help demystify some of these issues to help you ensure your practice is being fair and transparent when it comes to disciplinary processes.
The term ‘misconduct’ can cover a broad range of unacceptable behaviour. We recommend putting in place a disciplinary policy that includes a non-exhaustive list of examples of potential disciplinary issues, for example:
However, disciplinary action may be warranted in a wide variety of other circumstances, some of which might be impossible to envisage when your policy is drafted.
If your practice has a disciplinary procedure in place, this should set out the process to follow.
If not, as a minimum, the Advisory, Conciliation and Arbitration Service’s (Acas) Code of Practice on disciplinary and grievance procedures must be adhered to. An unreasonable failure to do so means that any employment tribunal award for unfair dismissal could be increased by up to 25%. Equally, any award can also be decreased by the same amount if the employee fails to cooperate with the disciplinary process.
Depending on the type of misconduct, it may be appropriate to have an informal chat with the employee initially instead of immediately beginning a formal disciplinary procedure. Ensure that the employee knows a formal process could be started if the problem persists, so they don’t later feel ‘blindsided’. If the employee’s misconduct continues, an informal warning may be required, and if the issue persists, it will likely be appropriate to invoke the formal disciplinary procedure.
Sometimes, apparent misconduct may in fact be a result of performance or capability issues. For example, an employee who becomes irritable at work and is rude to their manager may have been forced to take on more than they can cope with due to another employee’s absence. Perhaps an employee is struggling with issues at home or has failed to understand the importance of a particular policy or process. In these situations, the employee may need support rather than discipline.
Similarly, if the employee suffers from a disability that may have affected their performance or behaviour, reasonable adjustments may have to be made and given time to embed before disciplinary action is taken to avoid claims of disability discrimination.
If it is suspected that the employee has committed an act of ‘gross misconduct’ (something serious such as theft or violence) it is a good idea to consider either a precautionary suspension or temporary reallocation of duties. If they are ultimately dismissed, allowing them to remain in post while you investigate may undermine any argument that the practice could no longer trust them.
A formal process should usually start with a fair and balanced investigation into the situation. The extent of this will depend on the circumstances but investigatory interviews with the employee and, potentially, other members of staff will often be required.
If you decide to proceed, the employee must be allowed to attend a disciplinary hearing to answer the case against them. A written invitation must be issued outlining the details of the hearing and notifying them of their legal right to be accompanied by either a colleague or trade union representative. The letter must outline the issues to be discussed and explain that one potential outcome of the hearing may be dismissal. Any new issues raised at the disciplinary hearing should be investigated fully.
The disciplinary outcome must be in writing and you must give the employee a right to appeal against the decision. The appropriate penalty will vary according to the gravity of the misconduct; from a final written warning or dismissal with notice through to summary dismissal (without notice). Take advice if you are unsure.
It is crucial to keep all documentation relating to the process safe. This will help you demonstrate that you have followed a fair procedure, should an employment tribunal arise.
The investigator should be impartial and have no previous involvement in the case. Your practice manager or someone from your HR function, if you have one, would be best. However, consider how you will escalate the process if necessary.
The person to deal with the disciplinary hearing should be a different person to the investigator and must also have the authority to make any necessary decisions, including the decision to dismiss. Any appeal should ideally be heard by someone senior to the person who dealt with the disciplinary and who has not been involved in the issues that gave rise to the proceedings.
If the practice manager has allegedly been involved in the misconduct, they should not be involved in the disciplinary procedure other than to give evidence. However, even if the practice manager isn’t at the centre of disciplinary action and isn’t connected to allegations of misconduct themselves, it may be difficult for them to maintain impartiality if they work closely other members of staff, who are implicated. In these circumstances, a partner of the practice may need to take the lead. Alternatively, it might be a good idea to use an external organisation to assist.
If any similar situations have occurred with other/previous employees, you must take a similar course of action unless there are fundamental differences in the facts of the cases. An employee treated more harshly than another for similar behaviour may claim that they were not aware that their behaviour might have serious consequences, or even that they have been discriminated against.
For practices seeking further support and information on taking disciplinary action, the Acas Code of Practice on disciplinary and grievance procedures and its guide to dealing with problems at work offer a helpful briefing on the basics.
We also have various guides on the subject which can be found here. There is, however, no substitute for specialist legal advice to help safeguard a practice, when required.
Louise Singh is a principal associate at national law firm Weightmans. She advises on all areas of employment, discrimination and tribunal law.
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